OMB Decision: $3.2 Million SLAPP Suit Dismissed

Toronto – Resident and environmental groups from around Lake Simcoe are elated by today’s judgment of the Ontario Municipal Board (“OMB:), dismissing Kimvar/Geranium’s unprecedented claim for $3.2 million in costs in the Big Bay Point development case. The Board agreed with the submissions of Clayton Ruby, Environmental Defence and the Innisfil District Association that an award of costs anywhere near the amount requested by the developer would create a “chilling effect” on public participation. The Board’s decision reads: “Nonetheless, there is no question that the claim is unprecedented and the Board finds that an award of costs anywhere near the amount requested would create a chilling effect. In this regard, the Board adopts Mr. Ruby’s submission that the public interest impact of a costs award is a relevant factor for the Board to consider in exercising its decision.” The Innisfil District Association (IDA) and their lawyers had asked the Board to dismiss the claim to prevent further extraordinary cost to citizens and taxpayers. The hearing is already a record-breaker, having lasted 17.5 days to date. The developer’s claim was launched on December 21, 2007. Costs estimates for defending the claim so far are now over one million dollars. “We’re relieved for the Innisfil District Association and their lawyers that this matter is over, but the reality is the cost of defending this claim at the OMB is more expensive than the maximum amount the Board has ever awarded in costs,” said Dr. Rick Smith, Executive Director of Environmental Defence. The Board noted the submissions of Clayton Ruby, the Environmental Commissioner of Ontario and Environmental Defence that to award costs at anywhere near the scale requested by Kimvar, the claim would have the effect of a Strategic Litigation Against Public Participation (“SLAPP”) suit sending a message that opposition from the public will not be tolerated. “The decision protects the public from developers’ SLAPP suits,” said Clayton Ruby, C.M., civil rights lawyer. “These meritless suits are so costly to defend that simply being a target is enough to chill public participation to protect the environment.” The Board also ruled that the initial OMB hearing on the merits of the mega-marina application was not unreasonable in length, nor did the Board agree with the criticisms of the project’s opponent’s evidence. Contrary to Kimvar’s claims, the Board held that costs cannot be sought against lawyers appearing at the OMB and that in any event in this case there was not improper conduct that should attract an award of costs. In its decision, the Board noted the extraordinary and acrimonious nature of the $3.2 million claim. The Board’s decision reads: “In this case, the magnitude of the costs claimed, coupled with the position that legal counsel be held equally accountable, revealed an animosity between the parties which was rarely evident during the hearing.” “We’re enormously grateful to our membership and all the others who have provided support that enabled us to succeed; now we can get back to the business of stopping the Big Bay Point mega-marina,” said Roger Parkinson, President of the IDA. “Having now gone through a very difficult mega-claim at the OMB, I don’t think it’s fair for the McGuinty government to watch from the side-lines any longer. They must pass anti-SLAPP suit legislation immediately to prevent others from going through the agony that we have been through.” Don Avery, Past-President of the IDA and subject of a continuing $1 million SLAPP suit, received the Bob Hunter “Damn Fine Activist” Award for 2008. The developer is seeking approval for 2,000 hotel and condominium units, a 300-person theatre, 86,000 square foot resort commercial space, 54,000 square foot conference facility, 32,000 square foot recreation centre and a 1,000 slip mega-marina. “The tragedy for environmentalists is that the developer claimed we put on a bad case but in reality the Big Bay Point development could not pass the strict requirements of the new Lake Simcoe Protection Act “Shoreline Protection” provisions if it were proposed today,” said David Donnelly, a target of the costs claim and counsel to Environmental Defence and the IDA. “I’m just glad I can speak out again against this project; I was getting a little rusty,” Donnelly added, after one year of being restricted from commenting on the case.